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Boulder judge denies motion to move Mapleton elk trial

By Mitchell Byars, Camera Staff Writer

Posted:
09/04/2013 01:11:37 PM MDT

Updated:
09/04/2013 05:32:03 PM MDT

A Boulder judge denied a request by Sam Carter -- the officer accused of shooting a trophy elk in the Mapleton Hill area on New Year's Day -- to move his trial out of Boulder despite arguments from Carter's attorney that the jury pool has been tainted by pretrial publicity.

Boulder District Judge Patrick Butler issued the ruling after a three-hour hearing this morning.

”Based upon the criteria the court is required to follow, this court cannot find that the residents of Boulder County are not able to seat 12 members of a jury panel plus a couple of alternates and give both sides of this case a fair and impartial weighing of the evidence,” Butler said.

Carter, 36, is facing nine charges -- including four felonies -- and is scheduled to stand trial the week of October 15.

In August, Carter's attorney Marc Colin filed a motion asking a judge to move the trial out of Boulder County. Colin argued that pretrial publicity had “deified” the elk that was killed and “vilified” Carter and Brent Curnow, the other former Boulder officer accused of plotting to kill the elk.

Colin pointed to numerous marches and rallies held as memorials to the elk, and also brought up comments on news articles and blogs from people who say the officers should be hanged or shot.

”That's precisely the type of vituperative reaction from jury pool members that justifies the change of venue,” Colin said. “There was a candlelight vigil for the elk, a bike ride in which people drove around with masks of the officers and horns on. You can actually call a number and hear a sound that is supposed to be 'Big Boy,' one of the names this elk has been referred to.”

But District Attorney Stan Garnett said while the Mapleton neighborhood and to some extent the city of Boulder was passionate about the case, he said the county was large enough that the entire jury pool was not prejudiced.

”There is no question that the defendant is entitled to a fair trial as are the people,” Garnett said. “I have no doubt that through careful jury selection processes, we will be able to establish that.”

Garnett also said it was impossible in the age of modern media that a town as well educated as Boulder would not read or hear news reports of the trial.

”The issue is not whether the jury has seen the publicity,” Garnett said. “The issue is whether the jury pool we put in that box is a jury that has been affected by that publicity. Are we able to get a jury that is able to decide the case based on the evidence? I maintain we will.”

Butler said in reaching his decision that while there was pretrial publicity, there was no definitive proof of how many people in the jury pool read reports or commented on them, and added that the media coverage has died down since the initial incident first broke.

We don't know how many people have read it or not read it, or agree or disagree with it,” Butler said. “The majority of the reports, the reactions to those reports occurred in the first few months after the incident occurred.”

According to an arrest affidavit, Carter shot and killed the elk near Mapleton Avenue and Ninth Street while on duty Jan. 1. Curnow -- who had been scheduled to work but called in sick that day -- then arrived in his pickup truck to haul away the carcass.

Although Carter told police he shot the elk because he saw it was injured, a necropsy revealed no evidence of a prior injury to the elk, and dispatch records show Carter did not report the shooting, according to court documents.

Text-messaging records also showed conversations between Carter and Curnow about killing the elk almost 20 hours before the shooting.

Curnow on Tuesday took a plea deal in pleaded guilty to one Class 6 felony charge and pleaded guilty to four misdemeanors. He received a two-year deferred sentence on the felony as well as one year probation and 60 days house arrest.

Colin said that he has not had any conversations with prosecutors about a deal for Carter.

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